28 Iowa 388 | Iowa | 1869
The defendant denies the compromise of the felony as alleged, and avers that the homestead was really the property of Henry, who had in his possession the money of
Upon the question of prior adjudication, the proof shows that the plaintiffs brought their action in equity, alleging substantially, though not as fully, the same matters as are set forth in the petition in this action; that the defendant demurred thereto, and the demurrer was sustained, but no judment was entered thereon, and the plaintiffs had leave to amend. That afterward the parties agreed in writing that the surety on the injunction bond should be released from all liability thereon, except for costs, and the plaintiffs abandoned that action. We hold, upon these facts, that such prior proceedings do not constitute a bar to this action.
The compromise or compounding of a felony is prohibited by our statute (Eev. §§ 4286, 4287), and the penalty of imprisonment is prescribed therefor. And the rule seems to be well settled, that where a contract is illegal, whether it is because of being malum prohibilmm or mal/um i/n se, the law will not afford affirmative relief to either, but will leave the parties as it found them. Marienthal et al. v. Shafer et al., 6 Iowa, 223, and authorities there cited; Guenther v. Dewien, 11 id. 133; Pike v. King, 16 id. 50. Whether the defendant, Hess, can recover upon the lease in his action for
Affirmed.